Interim cap illegal, as figures not placed before Parliament: JCWI
15th December 2010: Immigration cap is under judicial scanner.
In fact, the High court is scheduled to take up a plea challenging the limits that apply to tiers 1 and 2, along with a related matter.
Expressing hope that it can knock the cap off, the Joint Council for the Welfare of Immigrants has asserted: `So we are in the High court on our judicial review challenge of the interim cap. We are due to be heard alongside R (English Community Care Association) v Secretary of State – they are challenging the interim limits that apply to tier 2 of the points based system. We are actually challenging the limits that apply to tiers 1 and 2 in our own capacity’.
Just about four months back the Coalition introduced its interim cap by formally laying some rules before Parliament which introduced the interim cap that was to apply to tier 1 (General) for highly skilled migrants and tier 2 (General) for skilled workers.
But the Home Secretary omitted to actually formally lay the actual figures for the cap before Parliament, and instead chose to subsequently put something in slightly more vague terms up on the UKBA website, according to JCWI.
For tier 2 it simply said there was to be a 5 per cent reduction across both tiers 1 and 2. Employers were also notified directly by email about the website entry and the reduction in their certificate allocations.
For tier 1, the website entry specified the monthly limit, and said unused capacity would be carried over to the following month. In both cases, however, there was no forewarning of the changes, nor indeed any consultation.
JCWI says: `We are arguing on the basis of some previous legal cases, Pankina and the English Churches that section 3 (2) of the Immigration Act, 1971, required the Secretary of State to formally lay the actual figures for the before Parliament back in both June and July of this year.
`In our view these are part of the Rules and they affect status and entitlements of immigrants – they really should be there. As the figures were not laid before Parliament in the Statement of Changes to the Rules, we believe that the interim cap is illegal and are therefore asking the Court to quash them.
`The Secretary of State is arguing that whilst the existence of a limit is part of the rules for the purposes of section 3 (2) of the Immigration Act, 1971, and as such must be laid before Parliament, the numerical limits are not. It, therefore, follows that they believe that there’s no need at all for these to be formally laid before Parliament.
`As the House of Lords Statutory Instruments Merits Committee noted in relation to our previous submissions the implication that flows from all of this is that the Home Secretary is given a unilateral power to change the limit from 0 per month to 1,000,000 without any need what so ever to place this before Parliament for their consideration.
`Now leaving aside for one second the merits of this case, the question of whether this knee jerk style of policy making is by any stretch of imagination conducive to the smooth running of businesses, or indeed the broader issue of whether the cap is genuinely in the UK’s economic interests (the independent Migration Advisory Committee in fact found that the type of immigration we are trying to further reduce brought real economic benefits to the UK and did not displace national workers) is this really how we want parliamentary democracy to function’? JCWI questions.